Citation Nr: 0526747
Decision Date: 09/30/05 Archive Date: 10/17/05
DOCKET NO. 03-16 729 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for Barrette's
esophagitis.
2. Entitlement to service connection for cancer of the
nasopharynx claimed as due to asbestos exposure.
3. Entitlement to service connection for hypertension.
4. Entitlement to service connection for residuals of an
injury of the left wrist, to include arthritis.
5. Entitlement to service connection for bilateral heel
spurs.
6. Entitlement to service connection for degenerative disc
disease of the lumbar spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from December 1958 to February
1962.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from decisions of October 2002 and later by
the Department of Veterans Affairs (VA) Regional Office
(RO). A hearing was held before the undersigned Veterans Law
Judge in July 2005.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
There have been significant changes in the law and
regulations applicable to the appellant's claim during the
period of time this appeal has been pending. On November 9,
2000, the President signed into law the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000). The Act is applicable to all claims filed on or
after the date of enactment, November 9, 2000, or filed
before the date of enactment and not yet final as of that
date. The new law eliminates the concept of a well-grounded
claim, and redefines the obligations of the VA with respect
to the duty to assist claimants in the development of their
claims. First, the VA has a duty to notify the appellant and
his representative, if represented, of any information and
evidence needed to substantiate and complete a claim, and
which portion of any such information or evidence is to be
provided by the claimant and which portion, if any, the VA
will attempt to obtain on behalf of the claimant.
38 U.S.C.A. §§ 5102 and 5103. See generally Quartuccio v.
Principi, 16 Vet. App. 183 (2002). See also Charles (John)
v. Principi, 16 Vet. App. 370 (2002). Second, the VA has a
duty to assist the appellant in obtaining evidence necessary
to substantiate the claim. 38 U.S.C.A. § 5103A.
The VA has promulgated revised regulations to implement these
changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159
and 3.326(a)). The intended effect of the new regulations is
to establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits, or who attempts to reopen a
previously denied claim.
After reviewing the claims file, the Board concludes that
additional relevant evidence may exist which has not been
obtained. In this regard, the Board notes that the veteran
has reported that he was granted disability benefits from the
Social Security Administration in 1983. The Board concludes
that the VA has an additional duty to assist with the
development of evidence as the VA has not obtained evidence
from the Social Security Administration regarding the
veteran's claim for benefits with that organization. Efforts
to obtain such records should be accomplished. The duty to
assist is particularly applicable to records which are known
to be in the possession of the Federal Government, such as
military service department and Social Security
Administration records. See Counts v. Brown, 6 Vet. App. 473
(1994); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993)
(in deciding a claim for an increased rating, SSA's decision
is "pertinent" to a determination of a veteran's ability to
engage in substantially gainful employment, quoting Murincsak
v. Derwinski, 2 Vet. App. 363, 370 (1992)). As such, the
Board must obtain all of the records pertaining to the SSA
decision as such records may be relevant to the claims for VA
benefits. See Collier v. Derwinski, 1 Vet. App. 413 (1991).
The Board also notes that additional VA medical records may
exist which have not been obtained. During the hearing, the
veteran and his representative indicated that additional
relevant medical treatment was obtained from the VA since the
time when records were previously obtained. In particular,
it was indicated that he was recently treated for heel spurs
at the Chillicothe facility.
VA will make as many requests as are necessary to obtain
relevant records from a Federal department or agency. These
records include but are not limited to military records,
including service medical records; medical and other records
from VA medical facilities; records from non-VA facilities
providing examination or treatment at VA expense; and records
from other Federal agencies, such as the Social Security
Administration. VA will end its efforts to obtain records
from a Federal department or agency only if VA concludes that
the records sought do not exist or that further efforts to
obtain those records would be futile. Cases in which VA may
conclude that no further efforts are required include those
in which the Federal department or agency advises VA that the
requested records do not exist or the custodian does not have
them. 38 C.F.R. § 3.159.
The Board also notes that the VCAA requires that the VA
afford a veteran a medical examination or obtain a medical
opinion when necessary to make a decision on the claim. See
38 U.S.C.A. § 5103A(d). When the medical evidence is not
adequate, the VA must supplement the record by seeking an
advisory opinion or ordering another examination. See Littke
v. Derwinski, 1 Vet. App. 90 (1991). In the present case,
the veteran contends that he sustained injuries in service
which resulted in current orthopedic disabilities. The Board
notes that the veteran's service medical records document a
chip fracture to the left wrist, as well as treatment for a
back injury. However, no nexus opinion has been obtained
regarding whether any current disability is attributable to
those injuries. A VA joints examination would allow an
opportunity to obtained a fully informed medical opinion as
to such matters.
Accordingly, to ensure full compliance with due process
requirements, this case is REMANDED to the RO via the Appeals
Management Center for the following development:
1. The RO/AMC should attempt to obtain
all VA treatment records which are not
already of record such as the recent VA
treatment records from the Chillicothe
facility. VA must continue its efforts
until all records are obtained or unless
it is reasonably certain that such
records do not exist or that further
efforts to obtain them would be futile.
If no such records exist, this should be
documented.
2. The RO/AMC should obtain from the SSA
copies of all records pertinent to the
veteran's claim for SSA disability
benefits, as well as the medical records
relied upon concerning that claim.
Again, VA must continue its efforts until
all records are obtained or unless it is
reasonably certain that such records do
not exist or that further efforts to
obtain them would be futile. If no such
records exist, this should be documented.
3. The veteran should be afforded a VA
joints examination to determine the
nature and etiology of any disabilities
of the left wrist, lumbosacral spine, and
heels which the veteran may currently
have. The claims folder, including the
service medical records should be made
available to and reviewed by the examiner
before the examination. The examiner
should record the full history of the
disorders. The examiner should
specifically comment as to the likelihood
that any currently found disability is
related to the left wrist and back
injuries documented in the service
medical records. The examiner should
also offer an opinion as to the
likelihood that any heel spurs found on
examination are related to physical
strain of training and duties during
service.
4. The RO/AMC should thereafter review
the additional evidence that has been
obtained and determine whether the
benefits sought on appeal may now be
granted. If any of the benefits sought
on appeal remain denied, the appellant
and his representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).